Petitioner is a federal prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner claims that he is entitled to a credit against his federal sentence for time served in a state correctional facility. Following the issuance of an order to show cause on October 27, 2010, respondent filed an answer to the petition on December 8, 2010. Petitioner elected not to file a traverse. Upon careful consideration of the record and the applicable law, the undersigned will deny petitioner's application for habeas corpus relief.*fn1
I. Jurisdiction and Applicable Standards of Review
Relief by way of a writ of habeas corpus extends to a prisoner in custody under the authority of the United States who shows that his custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). A federal prisoner who challenges the validity or constitutionality of his conviction must file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. A federal prisoner challenging the manner, location, or conditions of the execution of a sentence, as petitioner does here, must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000).
A petitioner filing a petition for writ of habeas corpus under § 2241 must file the petition in the judicial district of the petitioner's custodian. Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). The warden of the penitentiary where a prisoner is confined constitutes the custodian who must be named in the petition, and the petition must be filed in the district of confinement. Rumsfeld v. Padilla, 542 U.S. 426, 446-47 (2004); Brown, 610 F.2d at 677. A failure to name and serve the custodian deprives the Court of personal jurisdiction. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).
Here, at all pertinent times, petitioner was incarcerated at the Federal Correctional Institution in Herlong, California (hereinafter "Herlong"), which is located within the Eastern District of California. Petitioner has named Richard Ives, the Warden of Herlong, as respondent. Accordingly, this action has been properly filed in this court.
In his petition filed February 12, 2010, petitioner claims that he is entitled to a credit against his federal sentence for the time he spent in state custody from May 15, 1996 through May 13, 1997. (Pet. at 4.) Petitioner states that he was arrested on May 15, 1996 "by federal & state law enforcement authorities" for armed bank robbery. (Id. at 3.) According to petitioner, he was incarcerated in a state-run facility from May 15, 1996 through May 13, 1997, at which point he was "turned over" to federal authorities for prosecution on the bank robbery charge. (Id.)
In his memorandum in support of his petition, filed on April 19, 2010, petitioner argues that 18 U.S.C. § 3585(b) entitles him to credit towards his federal sentence on his bank robbery conviction for the time he spent in state custody while awaiting prosecution on the bank robbery charge because he "was incarcerated in State Prison for the Precise conduct in which he was Federally indicted." (April 19, 2010 "Johnson's Memorandum In Support of His § 2241" (Doc. No. 7) (hereinafter P&A)), at 2.) Petitioner states that the "presiding judge" recognized that he should receive credit against his federal sentence for the time spent in state prison while awaiting federal prosecution, granted petitioner the time credit, and informed petitioner that "if the B.O.P failed to properly calculate the credit to contact the Court through his attorney or directly." (Id.)*fn2 Petitioner cites the decision in Willis v. United States, 438 F.2d 923 (5th Cir. 1971) in support of his claim that he is entitled to credit against his federal sentence for the time he spent in state custody from May 15, 1996 through May 13, 1997. (Id. at 2-3.)
On July 28, 1995, petitioner was released on parole from a California state prison after serving a sentence imposed following his conviction for possession for sale of cocaine. (Doc. 22-1 at 7, ¶3, 13.) On May 15, 1996, petitioner was arrested by his state parole agent for a parole violation based upon his commission of a robbery and re-incarcerated in a state facility. (Answer at 3; Doc. 22-1 at 7, ¶4, 12.)
On May 13, 1997, petitioner was arrested by the United States Marshal on a charge of armed bank robbery and temporarily removed from state custody pursuant to a writ of habeas corpus ad prosequendum for prosecution in the United States District Court for the Northern District of California. (P&A at 8; Doc. 22-1 at 7, ¶5; Attach. 2, at 1-2.) According to petitioner, two days later, on May 15, 1997, while in federal custody, he was again paroled following his state parole violation. (Doc. 22-1 at 7, ¶6, 16, 20; P&A at 10.)
On April 8, 1998, petitioner appeared in the United States District Court for the Northern District of California and was sentenced to 248 months in federal prison for the bank robbery (count 1) and for use of a firearm in connection with a crime of violence (count 2). (Doc. 22-1 at 26-29.) His federal sentence on count 1 was ordered to run concurrently with any state prison term that petitioner was then concurrently serving. (Id. at 27; P&A at 16.)*fn3
Petitioner commenced serving his federal sentence on April 8, 1998. (Doc. 22-1 at 37.) He received prior custody credit against his federal sentence from May 16, 1997 (the day following the granting of state parole) through April 7, 1998 (the day before his sentencing on his federal convictions). (Id.)
On October 4, 2007, petitioner filed an administrative appeal requesting that he also receive credit against his federal sentence for the time he spent in state custody from May 15, 1996 through May 13, 1997. (Pet. at consecutive pgs. 4, 7-8.) Petitioner alleged, as he does in the instant petition, that he was arrested on May 15, 1996 "by state & federal law enforcement authorities" for armed bank robbery, was held in state custody until May 13, 1997, and was then "turned over" to federal authorities for federal prosecution on the bank robbery charge. (Id. at 7.) He also explained in the administrative appeal that he was arrested by "Federal agents" and that his state parole officer "was present, but did not participate." (Id. at 11.) He further stated that he was "held in custody by the state parole Department, so that Federal Prosecutors could gather evidence and prepare a case against [him]," and that he was "charged with a parole violation because of that arrest." (Id.) Petitioner claimed therein that he was "never charged, convicted, or sentenced in state court for a parole violation," but that "at the behest of the federal government, I was held in state custody from May 15, 1996, through May 13, 1997, to allow federal prosecutors to develop and prepare a federal case against me." ...